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Joseph and Ors. Vs. Kurian and Ors. - (High Court of Kerala) (01 Mar 2021)

Discharge under Section 239 of the CrPC can be ordered, when the Magistrate considers the charge against the accused to be groundless

MANU/KE/0440/2021

Criminal

The case is instituted upon the complaint filed by the first Respondent ('the complainant'). The offences alleged against the accused in the case are punishable under Sections 403, 409, 420, 468 and 120B of Indian Penal Code, 1860 (IPC).

The complainant had executed a power of attorney in favour of the first accused authorising him to deal with his property. The first accused executed a sale deed in favour of the second accused in respect of the property owned by the complainant by using the power of attorney. The crux of the allegations in the complaint is that, in that sale deed, instead of affixing the thumb impression of the complainant, the thumb impression of some other person was affixed. The other accused in the case are persons who had allegedly assisted the Petitioners in the preparation and registration of the sale deed.

In the Court below, the case had reached the stage of adducing evidence under Section 244 of the Code of Criminal Procedure, 1973 (CrPC). The Petitioners filed an application before the trial Court seeking discharge. As per the order, the learned Magistrate dismissed the aforesaid application. The first and the second accused have filed present revision petition challenging the legality and propriety of the order passed by the learned Magistrate, dismissing the application for discharge filed by them.

Section 245(1) of the CrPC provides that, if, upon taking all the evidence referred to in Section 244 of the CrPC, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him.

Under Section 227 of the CrPC, the trial Court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 of the CrPC can be ordered, when "the Magistrate considers the charge against the accused to be groundless". The power of discharge under Section 245(1) of the CrPC can be exercised by the Magistrate when, "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction".

Sections 227 and 239 of the CrPC provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245(1) of the CrPC, on the other hand, is reached only after the evidence referred to in Section 244 of the CrPC has been taken.

In the present case, the learned Magistrate has found in the impugned order that, the evidence of PW1 and PW2 discloses the fraudulent acts committed by the first accused as alleged in the complaint. If the evidence adduced by the complainant at the stage of Section 244 of the CrPC, if unrebutted, prima facie, discloses the ingredients of the offences alleged against the accused, no order of discharge can be passed under Section 245(1) of the CrPC and the learned Magistrate would be required to frame charge against the accused under Section 246 of the CrPC.

There is nothing to show that, the learned Magistrate has arbitrarily exercised his jurisdiction in passing the impugned order or that the impugned order is manifestly perverse or against well-settled principles of law. There is no sufficient ground to interfere with the impugned order passed by the learned Magistrate. Petition dismissed.

Tags : EVIDENCE   DISCHARGE   ENTITLEMENT  

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